合同法和侵权法的边界——加害给付:合同责任?侵权责任?

加害给付,这一典型的违约性侵权行为自其诞生以来,一直是困扰各国立法者和理论界的难题———在传统民法的侵权和违约二元救济体系下如何给受害者以公平的救济。本文试图从现代社会债务体系扩张这一大背景下重新审视责任竞合理论和违约损害赔偿与侵权损害赔偿的范围划分,为消除加害给付在理论上存在的悖论作一些尝试。

A Difference Between Contract Law and Tort Law——Injurious Fulfillment: Within the Ambit of Contract Liabilities or Tort Liabilities?

Injurious fulfillment, one type of typical breaching and tortious acts, has been making troubles to law-makers and theorists all over the world since its coming into being. People wonder how to give the victim a fair remedy under the traditional civil law that consists of a dual remedy system of contract and tortious liabilities. This paper, in view of the framework of obligations in modern society, reconsiders the logic of overlapping liabilities and the delineation of damages of breach of contract and damages of tort so as to eliminate the irrationality arising out of injurious fulfillment in theory.